Kennedy's Marriage Ruling Is About Gay Rights, Not States' Rights

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http://www.theatlantic.com/national/archive/2013/06/kennedys-marriage-ruling-is-about-gay-rights-not-states-rights/277251/


Justice Kennedy, not in the courtroom but rather presiding over a representation of "The Trial of Hamlet" at the Shakespeare Center of Los Angeles in January, 2011. (Damian Dovarganes/AP)

Read enough opinions by Justice Anthony M. Kennedy, and you will realize that he has three jurisprudential loves: the sovereignty of American states; the "dignity and worth" of gay men and lesbians; and the majesty of the Supreme Court of the United States.

Wednesday, Kennedy made history by affirming the importance of all three. In United States v. Windsor, Kennedy wrote for a five-justice majority (including Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan). His opinion struck down the federal Defense of Marriage Act (DOMA). As evidenced by language in the opinion about the "sovereign authority within our federal system, DOMA fell in part because it discriminated against states that allow same-sex marriage. But more important was the majority's view of its mean-spiritedness toward same-sex couples.

So to be clear, this decision was not about "states' rights." It was about gay rights.

The Windsor opinion caps a trilogy of historic Kennedy opinions affirming gay equality. It sounds the same theme with which he began the process in the 1996 case of Romer v. Evans: no government has the authority under the Constitution to single gay people out as less worthy than others. As refined in Lawrence v. Texas, that principle means that, when a law makes gays unequal, the Court need not consider whether sexual orientation is like race or gender, a trait requiring special solicitude from courts. All that it need do is establish the illegitimate purpose -- creating inequality in a way that demeans gays -- and the state or federal law will fall.

The issues in Windsor reduce to three: (1) since the Administration had refused to defend the law before the Court of Appeals, did the parties belong before the Supreme Court at all?; (2) because DOMA used federal law to reject some marriages legal under state law, did the statute violate a state's presumed power over marriage and family?; and (3) by rejecting federal recognition of marriages recognized by states, did it violate the rights of the couples themselves?